Tuesday, August 14, 2018

By Ralph Ciprianofor BigTrial.netOnOct. 1, 2014, Brett Swisher-Houtz, "Victim No. 4" in the Jerry Sandusky sex abuse case was called to testify as a witness in a civil case.

In Philadelphia Common Pleas Court, Penn State University was being sued by its own insurance carrier. The Pennsylvania Manufacturer's Association had taken issue with the large multimillion payouts the university was awarding to 36 young men like Victim No. 4, payments to date that have totaled $118 million.

Steven J. Engelmyer, the lawyer representing Penn State's insurance carrier, had a simple question for Swisher-Houtz, who just a year earlier, on Sept. 12, 2013, had collected a confidential settlementfrom Penn State of $7.25 million.“Has anybody from Penn State ever spoken to you?" the lawyer wanted to know.

“Not that I’m aware of,” the witness replied.

In terms of legal battles, it was easy money. In sex abuse cases, alleged victims can potentially face a grilling from a private investigator, a deposition by a lawyer, and an extensive evaluation conducted by a forensic psychiatrist. They can also be asked to submit to a polygraph test to see if they're telling in truth.Instead, here's what happened with Swisher-Houtz. On Dec. 4, 2012, lawyers Benjamin D. Andreozzi and Jeffrey Fritz, who did not respond to requests for comment, filed a three-and-a-half-page civil claim on behalf of the alleged victim. It was reviewed on behalf of Penn State by Barbara Ziv, a consulting forensic psychiatrist from Flourtown, PA, as well as law firm headed by Kenneth Feinberg of Washington, D.C.

When asked to specify the facts of his alleged abuse, "where it happened and the date on which it happened," Swisher-Houtz's lawyers wrote, "The instances of abuse were so frequent that Mr. Swisher-Houtz cannot be expected to list them here. In summary, Mr. Sandusky forced Mr. Swisher to engage in oral sex on countless occasions and attempted to penetrate his anus. See Sandusky trial transcript or grand jury reports related to Victim No. 4." The lawyers also submitted a report on the victim's behalf from a licensed psychologist.

Nearly a year later, Swisher-Houtz hit the lottery when the university paid him $7.25 million.

It could have been a rougher road to settlement. In the case of Swisher-Houtz, there was stone-cold proof on tape that the cops had deliberately lied to him to elicit more details of alleged abuse. A suspect therapist had also used widely discredited memory-recovery therapy on Victim No. 4 to elicit testimony that a prominent memory expert stated in court had no credible scientific basis.At the very least, a skillful interrogator might have succeeded in driving down the price of a settlement. But according to Swisher-Houtz, nobody from the university ever bothered to ask him anything. Instead, Penn State just wrote out another big check in its quest to purchase an atonement from scandal.The Conductor on the Gravy Train

The university trustee who oversaw victim settlements isn't talking, but we have some insight into his mindset thanks to a brief May 17, 2017 recorded interview between a would-be author and Ira Lubert. The Philadelphia real estate guru is the Penn State trustee who oversaw the board’s legal subcommittee, which approved the first 26 multi-million dollar settlement awarded to the alleged victims of Jerry Sandusky. Those 26 claims were subsequently ratified en masse by the entire board, after Lubert assured his fellow trustees that the claimants had been thoroughly vetted. In a remarkably candid interview of just three and a half minutes, obtained by reporter John Ziegler, Lubert talked about the alleged victims of Sandusky, none of whom had attended Penn State. Lubert colorfully described the claimants as being lined up "at the trough" waiting on the “gravy train.”

A gravy train on which Lubert was the conductor.Lubert blamed the university's plight on poor judgment exercised by Penn State's top officials. He was presumably talking about former university President Graham Spanier, Vice President Gary Schultz, Athletic Director Tim Curley, and Coach Joe Paterno.

"I believe all four of them were great people; I have a lot of respect for all of them," Lubert said.In the taped interview, Lubert, who did not respond to several requests for comment, was generous in his praise of Penn State's top officials, before burying them."I think they did amazing things for the university," Lubert said. "But all four used poor judgment and poor leadership. And as a result of that, they couldn't continue to lead our university."Lubert singled out Spanier for not being proactive in his discussions with other administrators about Sandusky's habit of showering with young boys, as evidenced by two separate incidents in 1998 and 2001. According to Lubert, Spanier supposedly decided, "I'm not gonna call human services or research any further whether something happened or didn't happen" when it came to Sandusky and the boys in the shower."And then it cost us $200 million to settle this. And he stays on as president," Lubert huffed about Spanier. "That can't happen."Lubert turned his attention to the question of whether Penn State's top officials committed any crimes."I was surprised when they pled guilty," Lubert said, presumably about Schultz and Curley. "I don't think they broke the law. I think they used very poor judgment. And, as I said to you, very poor leadership . . . That doesn't make them bad people. It just means you can't work at Penn State or any other university or any company when you demonstrate that failure in leadership."

"I fired him for that reason," Lubert said, presumably talking about Spanier. "Not because he broke the law but because he used bad judgment."Lubert talked about "all these theories" and various "snippet[s] of information" out there about the Sandusky case, and then returned to his bottom line.

"But at the end of the day, we have five people," Lubert said, presumably throwing Sandusky into the mix, along with Spanier, Schultz, Curley and Paterno.

"Two were convicted, two pled guilty and one said in hindsight, I wished I'd done more," Lubert said. He was talking in private to a would-be author who was a former Second Mile kid himself, somebody who believed that Sandusky was innocent, and that the young men who accused him of sex abuse were lying.But Lubert wasn't buying it. "To say you think nothing happened and that Jerry was totally innocent, I just have trouble with all of the other facts surrounding why all that happened to all those five guys," Lubert said, returning to the top Penn State officials caught up in the scandal.Lubert repeated his mantra: Sandusky and Spanier got convicted, Curley and Schultz pled guilty, and Paterno "said when he was alive, in hindsight I'd wish I'd done more."

About the claimants, Lubert stated categorically, "They're not all victims. There's some that were on the gravy train. There's some [claims] that we settled for $100,000 that would have cost us more to litigate. But there were some real victims. . . [some who] tried to commit suicide. I was in a position to see it."

“There’s some very bad situations,” Lubert concluded. “Did some people exaggerate their situations? Yes, they did. Did some lawyers step in front and say this is far worse than it was and I want more money? Absolutely, that happened. And wherever I could, I settled it. But believe me when I tell you, there was some bad stuff going on."The Master of DisastersTo initiate their claims of abuse, lawyers for the alleged victims typically filed a "confidential intake questionnaire" that marked the official start of the "Feinberg & Rozen Claims Resolution Process." In a couple of cases, the victims also filed civil lawsuits where university officials and trustees were deposed.To get paid, an alleged victim had to be a verified member of the Second Mile, Sandusky's charity for at-risk kids. It also helped to have testified against Sandusky at his criminal trial in 2012, as did eight of the 36 alleged victims, a trial where Sandusky was found guilty of 45 counts of abuse. For an alleged victim to get paid, it also helped to have reports from licensed psychologists, and medical records submitted for review. To get paid, a claimant had to have his paperwork reviewed by Dr. Ziv, and receive a favorable recommendation to settle the case from the law firm of Feinberg Rozen LLP of Washington D.C.Kenneth Feinberg, dubbed "The Master of Disasters," is the lawyer they called in to approve mass billion-dollar payouts to the victims of 9/11, the BP oil spill, the Virginia Tech shootings, and the Boston Marathon bombing. Besides presiding over terrorist attacks and natural disasters, Feinberg has overseen large billon dollar settlements in class action suits for pain and suffering caused by Agent Orange and the Dalkon Shield. In big disaster cases, Feinberg takes a global approach to settlements, rather than duking it out on one claim after another in the civil courts."In certain very limited types of mass disasters, there's gotta be a better way than one-by-one courts," Feinberg told The Observer in 2016. "These programs . . . do that. And they're very successful."It was also successful for Feinberg Rozen, which, as of January 2017, had been paid $1,484,094 by Penn State, after the law firm approved the first 28 settlements in the Sandusky case.

Feinberg, responding to an email requesting comment, said there wasn't much light he could shed on the process of vetting claims at Penn State."The mediation process was highly confidential and I am not at liberty to answer any questions you may pose concerning the value of the claims or other related details," Feinberg wrote in an email. He referred questions to Joseph O'Dea, the lawyer who represented Penn State in the claim mediation process. O'Dea declined comment, referring questions to Lawrence Lokman, a university spokesperson. "We have no comment for you," Lokman wrote in an email. "The university's perspective on the settlements, and Ken Feinberg's Op-ed describing the process are a matter of public record."

In that 2016 Op-ed piece, Feinberg wrote, "The [claim mediation] process was thorough, fair, respectful and characterized by full arms-length debate in each case." He described the resulting settlements as "a remarkable achievement given the high-profile nature of the cases.""Preventing years of expensive, protracted, and uncertain litigation will save Penn State millions of dollars, while sparing the victims who brought their cases forward the agony of an extended legal battle," Feinberg wrote. "I believe the Penn State mediation is a model of how such a dispute resolution process should work."

An "Absence of Documentation"Not everyone agreed with Feinberg's rosy assessment of the claim mediation process. In 2013, the payouts prompted the university’s insurance carrier, the Pennsylvania Manufacturers Association Insurance Company (PMA), to sue Penn State and the various “John Doe” claimants. The lawsuit ended three years later in a confidential settlement that lawyers in the case say they are prohibited from discussing.

One of those lawyers is Eric Anderson of Pittsburgh, an expert witness who testified on behalf of the insurance carrier. Although he declined to talk about the case, Anderson wrote a report that was disclosed in court records, a report that ripped the university.“It appears as though Penn State made little effort, if any, to verify the credibility of the claims of the individuals,” Anderson wrote on October 5, 2015. In his report, Anderson decried “the absence of documentation” in the claims, saying in many cases there was “no signed affidavit, statement or other means of personal verification of the information which I reviewed."

“I do not know why so many of the cases were settled for such high sums of money,” Anderson wrote. The lawyer suggested that “potential punitive damages . . . factored into Penn State’s evaluations,” along with “a concern about publicity and a desire to resolve the matters very quickly.”The Catholic ComparisonThe average settlement at Penn State was $3.3 million, more than double the highest average settlements paid out to alleged victims of sex abuse in the Catholic clergy scandals, such as in:-- Boston, where the church in 2003 paid $85 million to 552 alleged victims, an average settlement of $153,985.-- Los Angeles, where the church in 2006 paid $60 million to 45 alleged victims, an average of $1.3 million.-- Los Angeles, where the church in 2007 paid $660 million to 508 alleged victims, an average of $1.3 million.-- San Diego, where the church in 2007 paid $198 million to 144 alleged victims, an average of $1.4 million.

Throwing Gasoline on a Fire

Another factor that may have led to higher settlements at Penn State was the publication of the Freeh Report of 2012, which blamed the university's football culture for the scandal, and accused Penn State's top administrators of engaging in a cover up. Gary Langsdale, the university’s risk officer, was deposed in the insurance case on May 30, 2014. At the deposition, Engelmyer, the insurance carrier’s lawyer, asked Langsdale if he had any concerns about the impact the Freeh Report would have on claims of abuse. “The report seemed to throw gasoline on a fire,” Langsdale replied.

Engelmyer turned to the university's efforts to vet the claims. "Tell me what steps Penn State took to confirm that the claimants that they were paying are, in fact credible and were telling true stories," the lawyer asked."I read through the material that was provided by the victim's attorney, considered it in context with what we were told by Dr. [Barbara] Ziv was Mr. Sandusky's pattern of abuse, listened to Feinberg and Rozen on the subject, listened to Dr. Ziv on the subject," Langsdale testified.The lawyer asked Langsdale if he had any concerns that Dr. Ziv, the psychologist hired by the university as an expert to evaluate claims, “did not interview any of the first 26 or so victims who received payments from Penn State?”

“Not particularly,” Langsdale said.

"Why not," Engelmyer asked."Because I thought the process is robust enough to give us a good picture of the claims," Langsdale said.Dr. Ziv could not be reached for comment. She was a prominent witness at the Bill Cosby rape trial, where she testified about common "rape myths" regarding the behavior of victims of sex abuse. One of those myths, Dr. Ziv told the jury, was that victims lie.No more than seven percent of sex abuse claims are false, Dr. Ziv told the jury. She added that the actual percentage of false claims could be as low as two percent.Dr. Ziv was clearly a believer in the overall veracity of alleged victims of sexual abuse, so it makes sense why she wouldn't have to personally interview alleged victims to certify their accounts as true. University officials, however, subsequently decided to change their hands-off approach to claimants, when it came to having a psychiatrist review those claims.In 2015, the university began hiring psychiatrists to examine the claimants, beginning with Skyler Coover, No. 29 on the list, who was paid $7 million. The exams didn't seem to lower the price of settlements. Besides Coover, six more claimants were examined by university psychiatrists, and all seven of those victims collected a total of $27.8 million, or $3.97 million each.In contrast to Dr. Ziv's faith in the veracity of alleged victims of abuse, a judge recently questioned the credibility of Glenn Neff, an alleged victim of Sandusky's who was attempting to gain immediate access to the confidential settlement of $7 million that he received last year from Penn State.According to the Chester County Daily Local News, on July 17th, Chester County Judge William P. Mahon "angrily dismissed" a request to transfer assets from Neff's multimillion-dollar settlement that was sought by a Delaware-based financial firm. The newspaper did not name Neff as a victim, because of a typical media policy of self-censorship when it comes to alleged victims of sex abuse, but Neff's name was printed on legal documents in the case.According to the newspaper, the Delaware firm sought court approval of a plan to convert $2.99 million from Neff's 2017 settlement into $850,000 in cash. In court, Neff testified that he needed the money to bolster his tree-trimming business and his wife wanted to expand a beauty salon.But Judge Mahon said the proposed settlement, the third in the case, was "riddled with sketchy assertions about [Neff's] financial well-being that were contradicted by statements" Neff made in court. "I am beginning to wonder what the heck is going on," the judge said, adding "these petitions are completely unreliable." "This is abysmal," the judge said, before declaring, "Petition dismissed." The judge compared the behavior of the many firms seeking to gain access to Neff's settlement by offering immediate cash to "sharks with blood in the water."

In his claim, Neff alleged that he was sexually abused by Sandusky "on multiple dates between January 2004 and May 2005," including oral and anal rapes, but didn't tell anybody about it until 2016.As he left the hearing, according to the story filed by reporter Michael Rellahan, Neff refused to answer a reporter's questions, and Neff's wife "shouted before making an obscene gesture while boarding an elevator."Rolling Over

As part of their concerted effort to turn the page on the Sandusky scandal, Penn State's board of trustees decided not to publicly contest any of the findings of the Freeh Report. Even though behind closed doors, some trustees were highly critical of the work done by the former FBI director.On Jan. 14, 2015, Karen Peetz, former president of the board of trustees during the Sandusky scandal, was deposed by lawyer Engelmyer in the insurance case.

In response to questions from Engelmeyer, Peetz criticized Freeh for an "overreach" when he accused Penn State officials of concealing Sandusky's conduct, and having a "striking lack of empathy" for victims."His spin on the situation," was how Peetz characterized Freeh's criticisms. When the university hired Freeh, Peetz testified, she expected "nothing but the facts."

"I expected facts," she repeated, but stated that instead of facts, the university got "editorializing" from Freeh. As well as a "kind of dramatization," Peetz said, when Freeh faulted the university's football culture for the sex abuse scandal. Peetz also stated that she had no idea until she read the Freeh Report that the NCAA was relying on it to punish the university."Were you aware that they [the NCAA] were using the Freeh Report as a factual basis for the imposition . . . of sanctions?" Engelmyer asked."No," Peetz said."When did you first find out?" the lawyer asked. "Was it when you read it?""Yes," she said.But, according to Peetz, rather than take issue with Freeh, a majority of trustees decided to roll over."We made a decision not to pick apart the Freeh Report, thinking that that wasn't going to be that helpful to moving forward," Peetz testified. She added, "There's a group of trustees who would like to do that.""It just doesn't make sense."While Penn State took a hands-off approach to investigating claims of abuse, the Archdiocese of Philadelphia had a practice of hiring private detectives to investigate claims. Jack Rossiter, a former FBI agent of 30 years, investigated more than 150 cases of alleged sex abuse as a private detective employed by the Catholic Archdiocese of Philadelphia between 2003 and 2007.

In a situation involving national publicity, like the Jerry Sandusky case, Rossiter said, you'd have to be on guard for criminals and drug addicts coming forward to seek a pay day."With national headlines and all these people lining up, you'd have to be more skeptical" of the claims, Rossiter said."Obviously, you have to do a detailed interview" with each alleged victim, he said, asking questions such as, "Who did you tell, when did you tell them? And who can corroborate your story?""That's what you do, you investigate," Rossiter said. "The key," he said, is to find corroboration for the victim's story, to see if their stories hold up."A good interviewer could have broken somebody who was fabricating something," Rossiter said. Especially if you drag them through all the details of what the Penn State locker room looked like, to determine "whether they were really in the shower."The surest way to spot a fake, Rossiter said, is to come at their story from the opposite point of view.

In investigating cases for the archdiocese, Rossiter said, "I have to go into it believing the victim is telling the truth." If the detective merely tried to help the church cover up abuse, "I'm of no value to anyone," Rossiter said.

So he always gave the victim "a clean slate," the benefit of the doubt, Rossiter said. Then, the former FBI agent set out to try and corroborate the victims' stories. In seeking proof, Rossiter went as far as to polygraph priests accused of abuse.

As far as the Penn State case was concerned, Rossiter was surprised to hear that apparently not one of the 36 alleged victims supposedly told anyone about the attacks when they allegedly occurred -- a period that spanned nearly four decades.

If a pedophile was running loose for that long, "You would think someone would pick it up," Rossiter said. "Either at school or the parents or a close friend." Rossiter was also troubled by the use of recovered memories by many alleged victims of Sandusky.

"I always have my doubts about that," he said. The radically changing stories of many of the victims was another source of concern for an investigator playing defense on claims. Rossiter said he couldn't understand why the university didn't do more to investigate claims of abuse.It sounds like "they just got a pool of money together and said let's buy everybody off and get this damn thing behind us," Rossiter said. "It just doesn't make sense."Swisher-Houtz's ClaimWhen the father of Brett Swisher-Houtz read the story by Sara Ganim in the Patriot-News about how a grand jury was investigating Jerry Sandusky for sex abuse, he advised his son, a former Second Mile alum, to hire lawyer Benjamin Andreozzi, who specialized in taking sex assault cases on contingency.

But when Andreozzi first came to see him on April 5, 2011, Swisher-Houtz wasn’t cooperative, and didn’t say anything had happened to him. Two days later, when a state police corporal knocked on his door, Swisher-Houtz said he wanted to talk to his lawyer before he talked to police.

On April 21, 2011, Pennsylvania State Troopers Joseph Leiter and Scott Rossman interviewed Swisher-Houtz at the police barracks, with his attorney present, and a tape recorder running. This time, Swisher-Houtz was more cooperative. During the first 50 minutes of questioning, as recounted in trial transcripts, Swisher-Houtz told the troopers about wrestling matches with Sandusky, and how Sandusky would pin him to the floor with his genitals allegedly stuck in the boy’s face. Then, Sandusky would allegedly kiss and lick the inside of the boy’s legs, Swisher-Houtz claimed. That prompted Trooper Rossman to ask if Sandusky would kiss or lick his testicles.

“Kind of,” he replied, but the state troopers suspected the witness was holding back graphic details of more serious abuse.

Cops Caught Lying

While Swisher-Houtz smoked a cigarette outside, the two state troopers talked with Houtz’s lawyer, unaware that the tape-recorder was still running. On tape, the troopers talked about how it had taken months to coax rape details out of Aaron Fisher, "Victim No. 1" in the Sandusky case. “First, it was, 'Yeah, he would rub my shoulders;' then it took repetition and repetition and finally, we got to the point where he [Fisher] would tell us what happened,” Leiter said. The troopers talked about how they were sure Swisher-Houtz was another rape victim, and they discussed how to get more details out of him.

Andreozzi had a helpful suggestion: “Can we at some point say to him, ‘Listen, we have interviewed other kids and other kids have told us that there was intercourse and that they have admitted this, you know. Is there anything else you want to tell us?’”

“Yep, we do that with all the other kids,” Leiter said.

When Swisher-Houtz returned, Leiter told him, “I just want to let you know you are not the first victim we have spoken to.” The trooper told him about nine adults the police had already interviewed, and said, “It is amazing. If this was a book, you would have been repeating, word for word, pretty much what a lot of people have already told us.”

At that point, the troopers had only interviewed three alleged victims who claimed they’d been abused, and only one – Aaron Fisher – had alleged prolonged abuse.

“I don’t want you to feel ashamed because you are a victim in this whole thing,” Trooper Leiter told Swisher-Houtz. “[Sandusky] took advantage of you . . . We need you to tell us as graphically as you can what took place... I just want you to understand that you are not alone in this. By no means are you alone in this.”

At their request, Swisher-Houtz became more graphic, asserting that Sandusky used to pin him face down in the shower, then hump the boy’s buttocks until he ejaculated. Sandusky, he claimed, would also push his penis into the boy’s face until he had an orgasm.

Suspect Therapy

Swisher-Houtz subsequently began therapy sessions with psychotherapist Mike Gillum, the same therapist who counseled Aaron Fisher, Victim No. 1 in the Penn State case. By the time Sandusky went on trial on June 11, 2012, Swisher-Houtz was the prosecution’s leadoff witness. He testified that for years Sandusky had inserted his penis into the boy’s mouth two or three times a week while they showered, sometimes with Sandusky ejaculating. It happened “40 times at least,” Swisher-Houtz told the jury. Sandusky also attempted to anally rape him in the shower, the witness claimed, but that he pushed Sandusky off “with all my might” and got away.

When asked by Sandusky’s attorney why he hadn’t initially said he was abused, the witness testified, “I have spent, you know, so many years burying this in the back of my mind forever.”

Author Mark Pendergrast wrote a book about the Sandusky case. He's skeptical about Swisher-Houtz’s claims of repressed memories of abuse, as well as similar claims from three of the eight other alleged victims who testified against Sandusky at trial.“All of the recovered memories in the Sandusky case are most certainly false,” said Pendergrast, who wrote The Most Hated Man In America; Jerry Sandusky and the Rush to Judgment, a book that's been excerpted on Big Trial. “They shouldn’t even be called memories," Pendergrast said about so-called repressed memories of abuse; "they’re confabulations.” “This entire case started because therapist Mike Gillum saw Aaron Fisher as a patient,” Pendergrast said. Gillum “used incredibly leading methodology and got over-involved” with his patient, Pendergrast said, to the point where “Aaron Fisher became convinced that he remembered traumatic abuse that probably didn’t happen.” In the Aaron Fisher case, Fisher, then 15, told school officials about his physical contact with Sandusky, but didn’t describe it as overtly sexual. A youth services counselor advised Fisher's mother to bring her son to psychotherapist Gillum.

Starting at the first session, and continuing during weekly and sometimes daily sessions, Gillum asked leading questions, and Fisher began to recall multiple instances of Sandusky fondling him and forcing him to participate in oral sex. In Silent No More, a 2012 book Gillum co-authored with Fisher and his mother, Gillum wrote that he saw his job as “peeling back the layers of the onion” in Fisher’s mind to uncover hidden memories of abuse. “Look, I know that something terrible happened to you,” Gillum told Fisher at the first session. And then Gillum would guess how Sandusky had abused Fisher. The patient simply had to say “yes,” or just nod his head to confirm the allegation that Sandusky had committed a sex crime.

After three years of such therapy, Fisher, became convinced that Sandusky had abused him more than 100 times between 2005 and 2008. Those crimes allegedly included oral sex and touching the boy’s genitals. The abuse allegedly took place at various locations, including Sandusky’s home and car, in hotel rooms, at Fisher’s school and on the Penn State campus.“Mike just kept saying that Jerry was the exact profile of a predator,” Fisher wrote in Silent No More. “When it finally sank in, I felt angry.”

The psychotherapist accompanied Fisher to police interviews, and when he testified before two grand juries. During those two years, Fisher, then the only alleged victim the authorities had in the case, repeatedly broke down crying in front of the first grand jury, and could not elaborate on details of his alleged abuse. When asked if Sandusky had forced him to engage in oral sex, Fisher denied it. Gillum then volunteered to testify on his client’s behalf, on the grounds that the teenager was too emotionally fragile to continue. But that didn't happen. When a second grand jury convened to investigate Sandusky, Fisher testified by reading a written statement about his alleged abuse.

In 2013, the university paid Fisher, whose lawyer, Andrew Shubin, did not respond to requests for comment, a confidential settlement of $7.5 million. In 2016, Gillum also began counseling Glenn Neff, another alleged victim, who, according to Neff's claim of abuse, "will be seen in psychotherapy with Michael Gillum, M.A., for the foreseeable future."

Pendergrast says there’s nothing scientific about the claim that people can repress memories of traumatic events. “Everything we know about the science of memory shows that the things that we remember the best are the most traumatic events that happen to us." The problem people have with traumatic memories, Pendergrast said, is they can’t forget them. “That’s what PTSD is,” Pendergrast said, referring to Post Traumatic Stress Disorder. “There’s no convincing evidence whatsoever that people can forget years of traumatic events.”

But at the Sandusky trial, the prosecution presented repressed memory theory as fact. Before calling his witnesses, the prosecutor, Joseph McGettigan, told the jury that he would have to “press these young men for the details of their victimization,” because “they don’t want to remember.” That’s why the investigation was slow,” McGettigan said, because “the doors of people’s minds” were closed.

After a jury found Sandusky guilty, then Pennsylvania Attorney General Linda Kelly held a press conference outside the courthouse.About the alleged victims, Kelly said, “It was incredibly difficult for some of them to unearth long-buried memories of the shocking abuse they suffered at the hands of this defendant.”

No Credible Scientific SupportAnother critic of recovered memory therapy is Dr. Elizabeth Loftus, one of the world’s foremost experts on the malleability of human memory. Loftus, who testified at a hearing on behalf of Sandusky’s unsuccessful bid for a new trial, has given lectures to the Secret Service and FBI; she also has a contract to work for the CIA

On May 11, 2017, testifying by phone, Loftus told Judge John Foradora, “There is no credible scientific support for this idea of massive repression." Nor is there any credible support, she added, for the idea that “you need psychotherapy to dig it out, and you can reliably recover these memories . . . in order to heal yourself.” In many jurisdictions, she told the judge, cases involving repressed memories have been thrown out of court.

Human memory “doesn’t work like a recording device” that can simply be played back at a later date, Loftus told the judge. Memories evolve over time and can be distorted or contaminated with suggestive and leading questioning. Her experiments have also shown that people can be talked into believing things that aren’t true. “You can plant entirely false memories in the minds of people for events that never happened,” she explained. And once those false memories are planted, she told the judge, people will relate those memories as if they were true, “complete with high levels of detail and emotion.”

In her experiments, Loftus said, “We have successfully convinced ordinary, otherwise healthy people, that they were lost in the shopping mall” when they were five- or six-years-old, “that they were frightened, cried and had to be rescued by an elderly person and reunited with the family.” Other researchers have planted false memories about being “nearly drowned” as a child, and “rescued by a lifeguard,” she testified. People have been convinced that they were “attacked by a vicious animal,” Loftus added, or that they committed a serious crime as a teenager.

During the appeal hearing, Loftus said, “It seems pretty evident that there were drastic changes in the testimony of some of the [Sandusky] accusers.” One reason for those changes, she testified, was the “highly suggestive” way police and psychotherapists interviewed them.

Rap Sheets

While Penn State was paying out claims, the university didn't run background checks on the alleged victims. If they had, university officials would have discovered that 12 of the 36 claimants had criminal records, which experts such as former FBI Agent Rossiter say should have only increased suspicions about credibility.

At Penn State, the alleged victim with the most extensive criminal record is Ryan Rittmeyer, represented by Joel J. Feller, who did not respond to a request for comment.On November 29, 2011, Rittmeyer called the Pennsylvania state attorney general’s sex abuse hotline; he subsequently became Victim “No. 10” in the Sandusky case.

Rittmeyer’s rap sheet features 17 arrests from 2005 to 2016. They include arrests for reckless endangerment [he pled guilty and was sent to prison for 60 days], theft by deception and false impression [he pled guilty and got six months in jail and two years probation], receiving stolen property, a second count of theft by deception and false impression [he pled guilty and was put on probation for a year], criminal solicitation and robbery to inflict or threaten immediate bodily harm [he pled guilty and went to jail for 21 months] simple assault, and possession of a firearm [he pled guilty, went to jail for six months, and was put on probation for one year].

After he called the sex abuse hotline, Rittmeyer told the cops that Sandusky had groped him at a swimming pool and then attempted to have oral sex while driving him around in a silver convertible. Sandusky supposedly told Rittmeyer that if he didn’t submit, he would never see his family again.

On December 5, 2011, Rittmeyer testified before the grand jury, and changed his story to claim he saw Sandusky once or twice a month during 1997, 1998, and part of 1999, and that something sexual occurred almost every time. He claimed that he and Sandusky usually engaged in oral sex.

The problems with Rittmeyer’s story start with the car. “Jerry Sandusky never owned a silver convertible,” said Dick Anderson, a retired coach who was a colleague of Sandusky’s for decades on the Penn State coaching staff, and has known Sandusky since 1962, when they were Nittany Lions teammates. “He drove Fords or Hondas.”

Another retired assistant coach who was a colleague of Sandusky’s, Booker Brooks, said that when he first heard about the convertible, “I laughed out loud.” Because nobody on the coaching staff drove a convertible, Brooks says.Assistant coaches drove cars donated by local dealers, Brooks said. That’s because they had to pick up star high school recruits at airports, as well as their families. The cars the assistant coaches drove, Brooks said, needed to have four doors and a big trunk for luggage.

In spite of his lengthy criminal record and his questionable claim, Penn State didn’t subject Rittmeyer to a deposition with a lawyer, or an evaluation from a psychiatrist. Instead, after reviewing the paperwork for his claim, the university in 2013 paid Rittmeyer, 26, of Ellicott City, MD, $5.5 million.

The Grooming ProcessAccording to records of the claims, Zachary Konstas, the 11 year-old boy who took a shower with Sandusky back in 1998, was of the few claimants who was actually deposed. On June 18, 2015, Konstas was videotaped during a deposition he gave in a civil case, John Doe 6 v. Penn State, The Second Mile and Gerald Sandusky.It was Konstas's mother who was the first person to complain to authorities after she found out that her son had taken a shower with Sandusky. When questioned by police, Sandusky admitted that he had given the boy a bear-hug in the shower, and lifted him up to the shower head so he could wash shampoo out of his hair, but he denied any sexual abuse, as did Konstas.

Various authorities came to the same conclusion. After an investigation by the Penn State police, the Centre County District Attorney and a psychologist and investigator on behalf of the county’s Children and Youth Services, no evidence of sex abuse was found.

The psychologist who interviewed the boy for an hour wrote, “The behavior exhibited by Mr. Sandusky is directly consistent with what can be seen as an expected daily routine of being a football coach.” The psychologist, who interviewed several high school and college football coaches, wrote that it was “not uncommon for them to shower with their players.”

Konstas subsequently hired a lawyer and entered psychotherapy. He then contended that although Sandusky had never abused him, he was “grooming” him for future abuse. At Sandusky’s 2012 trial, Konstas testified that in addition to lifting him up to the showerhead to wash the shampoo out of his hair, Sandusky had slowly lathered him up with soap; Konstas also claimed that when Sandusky lifted him up he had “blacked out,” and could not remember whatever else might have happened.

After Sandusky was convicted, Konstas, 29, of Colorado Springs, CO sued Penn State in the civil courts claiming he had been abused.

In his civil claim, Konstas alleged that Sandusky used Penn State's showers to create "his own personal peep show" starring the 11-year-old boy as the victim. And that during the shower, Sandusky, playing "The Tickle Monster," used the tickling "as a pretense to put his hands over [Konstas's] adolescent body."

In 2015, Konstas collected a confidential settlement of $1.5 million.

But the university didn't say yes to all the claimants. Three claims were rejected, for unspecified reasons.One of those rejected claims was filed by by an inmate. Shamont Sapp, 49, acting as his own lawyer claimed that from 1978 to 1984, Sandusky took him along on trips where he met with the commissioner of the Big 8 conference in St. Louis, attended Celtics games in Boston, and visited the home of the late former PSU President John Oswald. Sapp also claimed that Sandusky frequently paid him for sex with Sandusky and other men, including former Centre County D.A. Ray Gricar, who disappeared in 2005 and was subsequently declared dead.Sapp, who in his claim explained that he didn't testify at Sandusky's trial because he "was in prison in Oklahoma at the time," pled guilty to assault in 1999, and pled guilty to theft by deception in 2015.In a letter to a judge, Sapp made some more allegations, claiming that he spoke to PSU President Spanier on the phone in 2011 and told him he had been sexually assaulted by Sandusky, and that Spanier called him a liar. In the same letter, Sapp claimed that "Joe Paterno caught us once in Sandusky's office naked from the waist down."But not even Penn State was willing to grant a settlement from a guy who was filing his claim from jail, because they rejected Sapp's claim.

"It Just Doesn't Make Common Sense"

Some of the newer civil claims filed against Sandusky and Penn State reached the furthest back in time; they are also among the most improbable.

Michael Quinn, “John Doe 150,” was represented by Slade McLaughlin, who represented “Billy Doe” in the Archdiocese of Philadelphia sex abuse scandal, as well as 11 other alleged victims at Penn State.

In the Philadelphia case, “Billy Doe,” whose real name is Danny Gallagher, claimed to have been repeatedly raped when he was a 10 and 11-year-old altar boy by two priests and a Catholic school teacher. He collected $5 million in a civil settlement with the Philadelphia archdiocese, but his story has since been shredded by a retired Philadelphia police detective who was the lead investigator on the case. Retired Detective Joe Walsh testified and wrote in a 12-page affidavit that he repeatedly caught Gallagher in one lie after another, and that Gallagher even admitted to the detective that he “just made up stuff and told them anything.” But at least Gallagher had to work for his money. In his civil case against the Archdiocese of Philadelphia, Gallagher was examined extensively by two forensic psychiatrists, who found him non-credible. Gallagher also had to submit to two full days of depositions, where he handled all the factual contradictions in his many changing stories of abuse by claiming he didn't remember more than 130 times. Gallagher's lawyer also claims that Gallagher passed a polygraph test. But when asked for proof, the lawyer has repeatedly declined to share the results of the test, which is not admissible in court.A problem for the archdiocese, however, was that Gallagher's civil case was slated to go to trial the month before Pope Francis was scheduled to visit Philadelphia for a historic visit in September 2015. Church officials, who had been skeptical of Gallagher's claims, subsequently decided to settle the case and pay the former altar boy $5 million.

In the Penn State case, Quinn -- "John Doe 150" -- claimed that when he was in ninth grade, he attended a summer camp on the Penn State campus sponsored by The Second Mile. At that camp, Sandusky, whom Quinn had never met, supposedly came up to him in the shower and without even saying hello, soaped him up, and stuck his finger in the boy’s anus.Here, the story takes a couple of incredulous turns.

In his claim against Penn State, Quinn asserted that as a ninth grader, he had the gumption to immediately tell several Penn State football players about what Sandusky had supposedly done to him. Even more incredibly, Quinn claimed that the next day, he tracked down legendary Coach Paterno in a hallway outside the coach’s office and supposedly confronted Paterno about what Sandusky had allegedly done to him. According to Quinn's claim, Paterno allegedly replied, “I don’t want to hear about any of that kind of stuff, I have a football season to worry about.”

The coach, of course, was dead and couldn't defend himself. But some Paterno loyalists bristle at Quinn's claim. When he first heard the details of Quinn’s allegations, Franco Harris, a Penn State star from the 1970s, and an NFL Hall-of-Famer, told reporter John Ziegler that Quinn’s story about allegedly tracking down and confronting Paterno was “unbelievable . . . It just doesn’t make common sense.”

It didn’t matter. Even though his claim was decades past the statute of limitations, which in Pennsylvania, for victims of sex abuse, is age 30, on Sept. 12, 2013, Quinn, 56, of Plains, PA, was paid a confidential settlement by Penn State of $300,000.

Quinn's lawyer, Slade McLaughlin, who also represented Glenn Neff, continues to defend his clients."All of my Penn State clients were solid people, and told the truth as far I know," McLaughlin wrote in an email. "If I had reason to disbelieve a client's story, I either rejected the case or had the client undergo a lie detector test. Not that facts like that matter to a so-called journalist like you. . . . You are a low life, bottom of the pit scumbag . . ."

A year after Quinn got paid, he was called as a witness to testify on Oct 13, 2014, in the civil case where Penn State’s insurance carrier sued the university.

“Have you ever been interviewed by anybody from Penn State regarding your claim,” asked lawyer Steven J. Engelmyer, on behalf of the university's insurance carrier.

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comments:

Ironic you came up with this commentary as AG Shapiro released his long planned report on child abuse in Pennsylvania Dioceses with the exception of Philadelphia. Was Shapiro any better than the nefarious prosecutors in both Penn State and the Archdiocese of Philadelphia? No.

Interesting to know that the NCAA has chosen to leave Michigan and USC alone without sanctioning them like they did with Penn State. The hypocrisy is so obvious and telling.

What we have learned is that children must be protected at all times from employee predators policies have been put in place to protect children and refer predators to the police yet Shapiro's report smears a paintbrush against ALL priests as if they are homosexual rapists when the facts show a very small percentage of priests are child rapists He does not give credit to Archdiocese for taking proactive steps to protect children but to smear all priests as such regardless of the facts stated

Penn State was browbeaten into paying millions of dollars for unverified claims made by a line of victims lining up for a generous payday so that they don't have to work like we do. You won't see Michigan and USC browbeaten to pay such settlements as the media has chosen to overlook such. Better was expected from prosecutors. Yet they chose to fail to reach the results needed in order to grossly exaggerate the facts in order to win at all costs for their pride and egos.

You are wrong about Michigan State, which is paying a $500 million dollar settlement to the victims of their sports doctor, Larry Nassar. I believe that will be significantly less, per victim, that what Penn State paid.

I expect similar big settlements from USC and Ohio State for their doctors who sexually abused patients. In the Ohio State case, there may not even be any legal liability given that the crimes all seem to be beyond the statute of limitations. I expect Ohio State will pay anyway and pay for any victims in Dr. Stauss's private practice as well.

Shapiro is an anti Catholic jackwagon politico. Catholic bashing must get brownie points in PA. If he investigated sexual abuse by rabbis, protestant ministers, youth ministers, public school teachers, coaches, youth group leaders,, medical practices, and even law enforcement, he would find the same problems at equal or greater severity. But he wanted to bash Catholics and go back 71 years to dig up dirt. How does this make kids safer today? How does bashing bishops for taking the advice of psychologists and attorneys with what we understood 20-30 years ago do anything for us today?

Shapiro had his private Grand Jury, spoon fed them what he wanted them to hear (no cross examination or introduction of evidence contrary to what Shapiro wanted heard), and wrote a narrative he knew the media would go gaga over. We have no idea if anyone who testified gave a truthful account of what actually happened.

Some even want to make the law eliminating the statute of limitations retroactive. Never mind that retroactive laws are unconstitutional. That would be a bonanza for lawyers suing the Catholic Church for alleged crimes committed decades ago by long dead priests.

I suspect Shapiro plans to use the Catholic Church sex abuse scandal as a springboard for a campaign for Governor.

Great article. It does beg the question. When Lubert said “there were some real victims.” Also, “ But believe me when I tell you, there was some bad stuff going on.” That question is two part: who and what? I guess after all these years, why don’t we know the truth? I don’t live in Pa. but it doesn’t take a genius to see that the cards were stacked against Curley and Schultz so they admitted the minimal guilt so they could get on with their lives. There was nothing fair about what happened to them. Mark P. researched and wrote a great book about how memory suppression was ridiculous and followed that book up with the Sandusky book which pretty much declared Sandusky innocent. Meanwhile an innocent man sits in jail if that is true. Anyone who wants to debate John Ziegler, I wish you luck because nobody knows this case as well as he does and he’s on the record as to Sandusky’s innocence. Who else is on the record and where’s the proof other than that repressed memory nonsense.

The news media is guilty of malpractice here; Penn State needs to be reexamined. But the media is on to the next sex abuse scandal as served up by the AG's office. The same guys who botched the Sandusky case.

Ralph, can you confirm/refute my recollection here? I seem to remember there was reporting out of the Sandusky trial that the PA state troopers under oath adamantly denied ever telling an accuser what other accusers had allegedly said, followed by the defense playing the audio tape of them doing just that. And, also if I remember correctly, there were no ramifications for the troopers who indisputably committed perjury during the trial. Is this how it went down?

That's correct about the audio tape that caught the state troopers, Scott Rossman and Joseph Leiter, perjuring themselves and tampering with a witness. The Sandusky judge and prosecutors did not make an issue of it. I bet if defense witnesses had done something similar, the judge, prosecutors and news media would have called for perjury and witness tampering charges.

The troopers apparently had a habit of turning off the tape recorder so they could coach the witness. Then they would turn it back on and get the witness to regurgitate what they prompted him to say. On this one occasion it was not turned off so it caught them in the act of witness tampering.

In addition, after the first trooper testified, he went out in the hall to tell the second trooper what he testified about so they could get their testimony the same. Both were later recalled to the stand and asked if they had talked together in the court hallway about their testimony. Leiter testified they did. Rossman testified they didn't. I never saw a report that either faced any consequences. Leiter was retired at the time but Rossman may still be on the job.

Trooper Rossman, along with Sassano, was also the first investigator to talk to Mike McQueary so it makes you wonder if he tampered with McQueary's testimony too. I never saw a report that they even tape recorded their initial conversation with McQueary so they could have told him anything.

Having a special relationship with Cozen, Fumo, and Rendell, Ira Lubert and Partners secured the Valley Forge Casino License. His long time financial hijinks and insider dealings should have been examined related to payday loan schemes and not allowed to operate as a paymaster for Penn State payoffs.

Another great blog post Ralph. In terms of being able to unwrap some of the lingering questions that surround the Penn State/Sandusky fiasco, you are light years ahead of other reporters who are covering the story in the local/national media and blogosphere IMO.

Penn State has paid out over $200 million to 36 claimants without rigorously vetted any of them! Penn State was indeed a gravy train!

Lawyer Eric Anderson who represented the insurance carrier said “It appears as though Penn State made little effort, if any, to verify the credibility of the claims of the individuals,"

In his report, Anderson decried “the absence of documentation” in the claims, saying in many cases there was “no signed affidavit, statement or other means of personal verification of the information which I reviewed. do not know why so many of the cases were settled for such high sums of money,”

Jack Rossiter is a former FBI agent who investigated over 150 cases of alleged CSA and was a private detective hired by the Catholic Archdiocese of Philadelphia to defend against alleged CSA claims. In a situation involving national publicity, like the Jerry Sandusky case, Rossiter said, you'd have to be on guard for criminals and drug addicts coming forward to seek a pay day. "With nattional headlines and all these people lining up, you have to be more skeptical" of the claims, Rossiter said.

"Obviously, you have to do a detailed interview" with each alleged victim, he said, asking questions such as, "Who did you tell, when did you tell them? And who can corroborate your story?"

"That's what you do, you investigate," Rossiter said. "The key," he said, is to find corroboration for the victim's story, to see if their stories hold up.

As far as the Penn State case was concerned, Rossiter was surprised to hear that apparently not one of the 36 alleged victims supposedly told anyone about the attacks when they allegedly occurred -- a period that spanned nearly four decades.

If a pedophile was running loose for that long, "You would think someone would pick it up," Rossiter said. "Either at school or the parents or a close friend."

It is remarkable to me that NONE of the 36 claimants told anyone contemporaneously that they had been a victim of CSA. In other words, Penn State paid over $200 million without irrefutable evidence that Sandusky had committed CSA!

There should have been iron-clad evidence, yet there is none. The strongest evidence that exists IMO are v1's testimony, v4's testimony, the 2000/2001 report by Mike McQueary (v2), and the 1998 incident (v6). I don't believe any of these items on their own constitute iron-clad evidence especially when you consider all of the exculpatory evidence that exists to the contrary.

Well said. I think Penn State just didn't want to spend the extra time and money to vet the claims, not even look at the conflicting statements and testimony that some of the victims gave. That was all written down for them so all they had to do was read it.

Some testified to one thing at trail but then embellished it for their lawsuits. The grand jury presentment said "Looking back on it as an adult, Victim 6 says Sandusky's behavior towards him as an eleven year old boy was very inappropriate." It was as if he hadn't thought about it for years. Then for the lawsuit he decided it was sexual abuse, and it ruined his life.

I think McQueary's testimony on victim 2 is weak given that no victim 2 ever came forward to claim millions in settlement money. Plus, McQueary got even the year and month wrong and McQueary's own father could not corroborate most of his testimony. In fact, no one corroborated most of McQueary's changing story.

Victim 6 was also a weak case because it was investigated at the time, and no charges were filed. The mother even allowed victim 6 to continue to see Sandusky after the investigation indicating that even she didn't believe he sexually abused her son.

Both Peetz and Lubert seem to believe that Curley, Schultz and Spanier did no worse than show poor judgment. If so, then why hasn't the narrative been rewritten to reflect that? How can they defend their "move on" strategy when virtually none of the assertions put forth by Freeh are backed up by the evidence contained in the body of his report?

The Trustees never want to publicly admit they made a mistake. Peetz and Lubert were under oath so couldn't lie like they can do when they give a news release.

I think PSU is also wary of refuting the Freeh Report because of the NCAA, which could vindictively come after PSU. The NCAA relied on the Freeh Report for the sanctions so if PSU refutes Freeh it refutes the basis of the NCAA sanctions. The NCAA has been vindictive to others, such as Jerry Tarkanian, USC, Ohio State, etc.

PSU could have gotten their $60 million fine back from the NCAA by letting a PA judge toss out the NCAA sanctions as invalid. Instead, they violated their fiduciary duty and made a bad settlement deal so the NCAA could save face.

With everything that's been said and written before, during, and after the trial, the only way the narrative changes is if Sandusky gets a new trial; and that, it appears, won't happen.Let's face it, the BOT had one of two paths to choose from: let's stand behind the guy who's been with us for 50 years and let due process reveal the truth, or let's take the path of least resistance, so that we are in no way accountable for this mess.Which leads to the next question: who in the hell is on the BOT and how did they get there. My personal opinion: 1. Peetz simply reinforces the age old belief that in times of trouble women crumble under pressure.2. I'll bet dollars to donuts that if these payments or any part thereof, were coming out of Ira Lubert's bank account, he wouldn't have such a laise faire attitude toward the number or amount!!3. And finally, I would like to apologize to John Ziegler when he first reported his belief that Sandusky was innocent. I thought John was the most objective reporter of all until he made that statement. But this continued dialogue increasingly supports John's belief.

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